South Africa’s Constitutional Court has made a groundbreaking ruling on paternal leave, declaring parts of the Basic Conditions of Employment Act (BCEA) and the Unemployment Insurance Fund (UIF) Act unconstitutional because they unfairly discriminated between mothers, fathers, adoptive parents, and surrogate parents.
On Friday, 3 October 2025, the apex court confirmed a decision that laws giving parental leave only to birth mothers, and much less leave to fathers and other parents, are invalid.
The court said this violated the Constitution because it treated different types of parents unequally.
Previously, mothers who gave birth were entitled to four months of maternity leave. Fathers, however, were only entitled to 10 days of paternal leave.
Adoptive parents were treated differently depending on whether the child was younger or older than two years old, and parents through surrogacy were also given less leave.
The court found this system unfair and discriminatory, saying it “marginalises fathers, burdens mothers, and disadvantages adoptive and commissioning parents.”
The court declared that sections 25, 25A, 25B and 25C of the BCEA and sections 24, 26A, 27 and 29A of the UIF Act are unconstitutional.
In simple terms, this means the current rules about maternity and parental leave cannot continue in their present form.
For example:
- Fathers will no longer be limited to only 10 days of leave.
- Adoptive parents will no longer be treated differently based on the child’s age.
- Surrogacy commissioning parents must be treated the same as biological parents.
The court said both parents should be entitled to four months and 10 days of leave between them. If only one parent is employed, that parent must get the full benefit.
Where both are employed, they must share it in a fair way, but the mother will still get priority for the time needed to recover from childbirth.
The Constitutional Court did not scrap the law immediately. Instead, it suspended the declaration of invalidity for 36 months (3 years) to give Parliament time to correct the unconstitutional parts of the BCEA and UIF Act.
In the meantime, the court ordered that the four months of parental leave should not only apply to mothers but also extend to fathers and other categories of parents.
This ensures families are treated more equally until Parliament passes new legislation.
The case was brought by Werner and Ika van Wyk, who had agreed that Mr Van Wyk would be the primary caregiver after their child was born.
However, his employer told him he was only entitled to 10 days of leave, forcing him to take six months of unpaid leave and putting his career at risk.
Non-profit group Sonke Gender Justice and the Commission for Gender Equality also joined the case, arguing that the current system unfairly discriminates against fathers and non-traditional parents.
In its unanimous ruling, the court stressed that giving fathers and other parents proper leave is important not only for fairness but also for children’s wellbeing.